Expensive city principles
http://www.ottawacitizen.com/opinion/Expensive+city+principles/2337930/story.html
BY MICHAEL POLOWIN, CITIZEN SPECIALDECEMBER 14, 2009BE THE FIRST TO POST A COMMENT
This gang can't shoot straight, and every time they miss, it seems to hit us right between the eyes.
It seems that every time we turn around, there is another story about council messing up and ending up in court, or at the Ontario Municipal Board, and costing us money. The really unfortunate thing is that it is so avoidable. Bad political decisions are costing the taxpayer time and money.
In March of last year, I wrote in this column that the city would lose the OMB appeal on the Minto-Manotick mess, before it had even been filed. Many, including members of council, loudly disagreed, and blithely went ahead. The city lost. Then the city proceeded to appeal to Divisional Court. I predicted in this space that the city would lose. Again, disagreement. The city lost. It spent hundreds of thousands of dollars on outside legal counsel and planners, all of which contribute to the tax increase you and I will suffer in 2010, all on predictable losses.
The city lost because it made decisions on strictly political grounds, rather than the way you and I would -- do we have a decent case? Do we have a chance of winning? In my law practice, I encounter clients that want to pursue litigation, even over small amounts. "It's the principle of the thing," they say, usually when they are angry, or otherwise exercised. By the way -- there is never a worse time to make a decision like that -- you really need to calm down first. My response when I hear that, is always: "What are your principles worth?"
Legal advice alone for a complicated hearing can be enormously expensive, but these hearings also include a lot of expert evidence. Studies and oral evidence from planning, noise, traffic and other experts can also be very costly. Any private citizen or corporate client contemplating litigation will evaluate the potential benefits, the chances of winning or losing, and costs. Then a reasoned decision will be made.
The problem is that it appears that our leaders do not go do that. Political calculus is different. It is our money being risked, and it is the political ends of the councillors being pushed, with some of this unnecessary litigation.
Long ago, I remember a story from a long-gone member of the city's legal department. The council of the day was intent on pursuing a matter to the OMB. The lawyer had cautioned council that it was a loser, and would be expensive. The warning was given on several occasions, but the council for pure political reasons was determined to pursue it. The warnings were correct, the city lost and was out a lot of money on costs.
There's nothing new under the sun. As taxpayers, we fund the activities of the city at the OMB and in the courts, when any reasonable calculus would have avoided the litigation, or resulted in a settlement. The only winners are the councillors pushing the matter, who are seen as supporting their constituents.
This column could be written at any time, and examples found to support the thesis. Today, the examples that spring to mind are the nonsense over Range Road, and the Orgaworld fight.
On Range Road, the city has approved a rezoning of a site currently occupied by an apartment building and a parking lot.
Last year, with the city's new comprehensive zoning bylaw, the zoning changed as a result of a city-wide decision to remove certain density limits to promote intensification.
After that time, a new buyer came along, and seeing the opportunity to redevelop the parking lot for another building (the very principle promoted by the change) bought the building after doing its proper due diligence.
When the councillor caught wind of this, he immediately moved to use a mechanism (an anomaly bylaw) intended for the correction of typos and similar mistakes, to change the zoning to prevent the tower. The justification was the existence of a very old secondary plan that would suggest such a second tower not be built. This was not a typo -- it was a downzoning. The property owner objected, of course, and we will no doubt be off to the OMB.
The city will lose. The mechanism used by council is the wrong one in this case. There were other ways to do what the councillor wanted done, perhaps -- but this one was fast and made him look like a defender of Sandy Hill.
In Orgaworld, the city is not a required party to a fight before the Environmental Review Tribunal over what can be composted in the company's plant. The city has absolute control over what items can be picked up through the green bin program through its contract with the company. The fight is over interpretation of provincial policy on the subject, which seems to hint that diapers and food scraps in plastic bags may well be acceptable items for compost. Why are we participating? It may well be because the councillor involved wants us to.
Maybe we should impose some discipline on these decisions -- if the city loses, on a patently political decision, councillors should pay for the costs out of their office budgets. Maybe then we will see fewer fights over "the principle of the thing."
Michael Polowin practises municipal and commercial real property law. E-mail:
[email protected].
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